The tight labor market in South Carolina triggered by the economic impacts of the COVID-19 pandemic doesn’t appear to be going away any time soon. A recent article on Forbes.com forecasts that “the labor market will remain tight for a while, and . . . will keep hiring difficult throughout this decade.” Another notes that, while “we’re already in an era where competition for knowledge workers is intense, the combination of an aging population and continued growth of the knowledge-based economy is going to the shortage,” of eager and qualified applicants.
This presents a number of practical and legal challenges for employers. Companies must find ways to attract talented applicants, but they must also be careful to avoid legal mistakes that could lead to unnecessary costs or litigation. With this in mind, here are seven legal considerations for employers that are currently navigating the tight labor market in South Carolina:
1. Vaccine Mandates and COVID-19 Safety Protocols
Due in no small part to the politicization of the pandemic, employers must think carefully about how they approach vaccine mandates and other COVID-19 safety protocols. While the federal mandate for companies with 100 or more employees is still working its way through the courts, employers of all sizes must make informed and strategic decisions about how they will address exposure risks in their workplaces.
In the current tight labor market, how employers approach these issues is likely to have an impact on their ability to attract and retain employees. Some job candidates and employees will expect companies to have robust safety programs, while others will choose not to work for companies that adopt restrictions they view as unnecessary or unwarranted. However, this is not the only consideration, as employers have a duty to provide a safe work environment for their employees.
2. Offering Reasonable Accommodations
In an effort to attract and retain high-performing employees, some companies may choose to offer accommodations to those who do not want to come into the office. While companies can generally offer such accommodations (and must offer reasonable accommodations to qualifying employees under the Americans with Disabilities Act (ADA)), in doing so they must be careful to avoid engaging in discriminatory practices. Even unintentional or benevolent discrimination can lead to trouble for employers, and there are several factors employers must carefully consider when evaluating employees’ accommodation requests.
3. Work-from-Home Capabilities
Even before the pandemic, we were already seeing a cultural shift toward employees preferring to work from home—particularly in white-collar occupations. The pandemic forced many companies to implement work-from-home capabilities at light speed; and, while some commentators predicted a permanent shift in 2020, we are already seeing many companies bring their employees back to the office at scale heading into 2022.
Companies that are not intending to maintain fully remote workforces must be prepared to respond to job candidates’ and employees’ requests to work from home—regardless of whether or not the requests relate to COVID-19 safety concerns. Some individuals are simply leveraging the tight labor market to make a permanent shift to working from home. Again, discrimination allegations are a concern, but employers must also ensure that they have the policies, procedures, and protocols in place to maintain adequate data security in light of their general and industry-specific obligations.
4. Compensation Packages and Fringe Benefits
Employers are increasingly being forced to find new and creative ways to attract top talent. However, high pay, career advancement opportunities, and workplace benefits remain top priorities for most employees. When offering attractive compensation packages and fringe benefits to entice new workers (or convince current employees to stay), employers must be careful to maintain compliance with the ADA, Age Discrimination in Employment Act (ADEA), and other pertinent statutes. Additionally, while employers may be within their rights to eventually cut pay or benefits for at-will employees if their increased costs become untenable, there are practical considerations to take into account, and this generally won’t be an option for contract-based employees.
5. Confidentiality Agreements and Non-Competes
To disincentivize employees from leaving during the tight labor market, employers may consider using confidentiality agreements and non-competes. While using these is prudent from a general business perspective for many companies, companies must ensure that their agreements are enforceable under South Carolina law, and they must also be prepared to enforce them if and when necessary.
6. Collective Bargaining and Union Relations
As recently reported on Law360.com, “hiring difficulties are prompting some unionized employers to seek to raise pay for new hires or offer signing bonuses, sparking tense negotiations as unions push to ensure [favorable] terms,” for their members. Collective bargaining and union relations often present heightened challenges for employers in tight labor markets, and employers must carefully and strategically navigate these challenges in order to maintain good relations in both the short and long term.
The COVID-19 pandemic has sparked interest in organizations amongst many non-unionized workers as well. For companies that are facing possible unionization, taking appropriate action proactively can be crucial for protecting the company’s financial interests and mitigating the risk of facing allegations of unfair labor practices.
7. Eliminating Barriers to Employment
The tight labor market has forced some companies to reconsider policies that effectively serve as barriers to employment for some qualified candidates. This includes policies requiring pre-employment cannabis screenings. While removing such barriers broadens the pool of potential job candidates, it also presents legal risks. Before eliminating policies that exist for a reason, employers must ensure that they have replacement policies in place that provide suitable liability protection.
Speak with a South Carolina Employment Lawyer at Gignilliat, Savitz & Bettis LLP
Gignilliat, Savitz & Bettis LLP is a South Carolina employment law firm that exclusively represents employers. If you have questions about any of the legal implications involved in navigating the current tight labor market, we encourage you to get in touch. To discuss your company’s legal needs with an experienced South Carolina employment lawyer in confidence, call 803-799-9311 or send us a message online today.